Sanders, Matter of, 56863

• Decision Date: 01 August 1985
• Docket Number: No. 56863,56863
• Parties: In the Matter of the Application For a Writ of Habeas Corpus by Jerry W. SANDERS.
• Court: Kansas Court of Appeals

Page 386

704 P.2d 386

10 Kan.App.2d 489

In the Matter of the Application For a Writ of Habeas Corpus

by Jerry W. SANDERS.

No. 56863.

Court of Appeals of Kansas.

Aug. 1, 1985.

Review Denied Sept. 27, 1985.

Syllabus by the Court

1. A person arrested as a fugitive from justice may be held in jail or on bond for thirty days, with the possibility of extensions of the time of commitment for a total of ninety days, at the discretion of the court. K.S.A. 22-2717.

2. The time limitations on the restraint of a fugitive in K.S.A. 22-2717 do not apply to the service of the governor's warrant or affect its validity.

3. Once a fugitive held pursuant to K.S.A. 22-2717 is arrested upon service of a valid governor's warrant, arguable irregularities occasioned by his detention beyond the 90 days allowed by the statute become moot.

4. In a proceeding regarding the extradition of a fugitive, the record is reviewed and it is held: The district court's initial refusal to appoint counsel, under the circumstances of this case, did not deny petitioner the right to counsel and did not invalidate his subsequent detention on the governor's warrant.

Michael J. Waite, Leavenworth, for appellant.

Frank E. Kohl, Co. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before REES, P.J., and PARKS and MEYER, JJ.

PARKS, Judge:

Petitioner, Jerry W. Sanders, appeals the denial of his petition for a writ of habeas corpus filed pursuant to K.S.A. 60-1501. Petitioner was being detained for extradition on a governor's warrant.

Petitioner was released from the Leavenworth Federal Penitentiary on May 16, 1983 and was immediately arrested on the same day pursuant to a fugitive warrant. Petitioner was incarcerated in the Leavenworth County jail and, since the documents before the court indicated that the alleged Alabama offenses carried a potential life sentence, no bond was set. K.S.A. 22-2716. Two extradition hearings were subsequently held on June 15 and July 18, 1983, at which the State requested 30-day continuances pending receipt of the governor's warrant. At the June 15 hearing, petitioner requested the appointment of counsel to represent him but the court declined, holding that there was no authority for such an appointment. On August 18, 1983, petitioner was served with the governor's warrant directing his extradition to Alabama. At that time, petitioner had been incarcerated for 95 days.

Once petitioner had finally been arrested on the governor's warrant, he filed a pro se petition for writ of habeas corpus and requested the court appoint counsel to represent him in resisting the extradition. Counsel was appointed but petitioner subsequently hired his own attorney. By motion of petitioner's retained counsel, the hearing on the writ was delayed several times until the requested relief was finally denied on November 16, 1983. Petitioner appeals from the denial of his petition.

Petitioner does not raise any contentions regarding the validity of the Alabama extradition documents or the governor's warrant itself. Instead, he contends that errors committed by the court prior to his arrest on the governor's warrant compel his belated release.

The law is well settled that a person arrested as a fugitive from justice may be held in jail or on bond for thirty days (K.S.A. 22-2715), with the possibility of extensions of the time of commitment for a total of ninety days, at the discretion of the court. K.S.A. 22-2717; Odom v. State, 215 Kan. 456, 458, 524 P.2d 217 (1974). The purpose of this period of commitment is to allow time for the arrival of extradition documents and the fugitive's arrest on a governor's warrant. K.S.A. 22-2715. If at the end of a 90-day wait the governor's warrant has not been received, the court may release the accused from confinement or the restrictions of bail. K.S.A. 22-2717. However, if the accused is released and the governor's warrant subsequently arrives after expiration of the 90-day detention period, the warrant may still be served and the accused validly arrested. In re Simpson, 2 Kan.App.2d 713, 586 P.2d 1389 (1978). In other words, the time limitations on the restraint of the fugitive do not apply to the service of the governor's warrant or affect its validity. Simpson, 2 Kan.App.2d at 714, 586 P.2d 1389.

This case presents a variation on the situation in Simpson because not only was the governor's warrant served beyond the time limits set by K.S.A. 22-2715 and 22-2717, but the accused was held in custody for the intervening five-day period. Thus, petitioner contends that, despite the presumed validity of the governor's warrant, his detention upon that warrant is faulty because its service was effected by what he argues was his unlawful detention beyond 90 days.

Although this precise issue has not been addressed in Kansas, a number of other states have considered similar situations. In Schumm v. Nelson, 659 P.2d 1389 (Colo.1983), the accused was arrested as a fugitive and held for 91 days before being served with the governor's warrant. He filed a petition for a writ of habeas corpus on the grounds that he had been detained in custody beyond the 90-day limit allowed by law. The court upheld the denial of any relief, concluding that once a valid governor's warrant is issued, illegalities and irregularities relating to the detention of the fugitive are moot. See also Michaels v. Caldwell, 646 P.2d 899 (Colo.1982); Simmons v. Leach, 626 P.2d 164 (Colo.1981); Whittington, Jr. v. Bray, 200 Colo. 17, 612 P.2d 72 (1980). Several other cases which have considered the effect of a detention beyond thirty days without the request for a continuance or the service of the governor's warrant have similarly held that the subsequent arrest on a proper governor's warrant renders the questionable detention a moot issue. See, e.g., Com. v. Brown, 281 Pa.Super. 31, 36, 421 A.2d 1131 (1980); Lewis...